“Nothing to see here.”
That might as well have been what Supreme Court counsel wrote this week to Democratic lawmakers seeking answers on a series of explosive claims involving the court’s right wing.
The allegations included the potential leak of Judge Samuel Alito’s Hobby Lobby opinion in 2014. If true, it would be the second known leak of an Alito decision – the other being his draft opinion overturning Roe v. Wade this year.
The court lawyer’s letter to lawmakers on Monday recited denials from Alito and Gayle Wright, a conservative donor who allegedly received the leak, while declaring that there was “nothing to suggest”, the justice violated ethical standards.
Well. Nothing to see here.
Of course, former anti-abortion campaigner Rob Schenck, who recruited wealthy donors like Wright and her husband to influence judges in a campaign dubbed “Operation Higher Court,” another story told The New York Times. In a November 19 report, Schenck said he received the goods from Wright after having dinner with Alito and his wife in June 2014, weeks before the notice was published.
The maybes keep piling up — and that’s just about Alito’s leaked allegation, which, it’s important to remember, is only part of the larger story.
Here’s the thing. As far as we know, Alito and Wright could be telling the truth. But the court letter defending Alito accidentally argues for a thorough and independent investigation into the case.
One questionable aspect of the letter is its selective citation of the Times report into the alleged leak, which court attorney Ethan Torrey quoted to note that, according to the article, Schenck’s account “has flaws.” Yet Torrey’s letter did not mention the next line in that same paragraph of the article, which begins with “But,” a word commonly understood to signal contrasting information to come. Indeed, the story, but not the court letter, provides more context:
But after months of examining Mr Schenck’s claims, the Times has found a trail of contemporary emails and conversations strongly suggesting he knew the outcome and author of the Hobby Lobby decision before it was not be made public.
Well. Maybe there is something to see here after all.
Of course, perhaps the “gaps” in Schenck’s account outweigh the “strongly suggested” escape. But that’s the problem: too many “maybe” and not enough clear answers.
The court letter, on the other hand, is not a search for the truth. This takes Alito and Wright’s word while selectively criticizing Schenck. That doesn’t leave us any the wiser as to whether Alito or anyone else informed Wright of the admittedly unsurprising fact that the justice drafted ruling sided with Hobby Lobby, a company that sought to avoid , on religious grounds, to provide contraception to employees, as mandated by both the Affordable Care Act. (Admittedly, outcomes in controversial cases were less preordained in 2014, when swing vote Anthony Kennedy was in the field. Hobby Lobby was a 5-4 opinion. That margin today would likely be wider.)
It looks like we can get clearer answers — or at least a fuller dissemination of the still unanswered questions. The Senate Judiciary Committee is investigating the allegations. And the House Judiciary Committee said it will hold a hearing next Thursday titled “Undue Influence: Superior Court Operation and Politics at SCOTUS.”
One piece of evidence worth exploring is an email Wright allegedly sent Schenck the day after the 2014 dinner in question. According to the Times, she wrote, “Rob, if you want some interesting news, call. No emails. Schenck said Wright told her she learned Alito would be the author of the Hobby Lobby opinion in favor of the company.
But Wright, in an interview with The Times, suggested the “interesting news” had to do with something else:
Ms Wright said that although she did not have her calendars for those days, she believed the night in question involved a dinner at the Alitos during which she fell ill. She said that justice had escorted her and her husband back to her hotel, and that may have been the news she wanted to share with Mr. Schenck.
Does that sound like something so “interesting” that you wouldn’t want it logged in an email?
It would be interesting to hear what everyone involved would say under oath. It would also be interesting to see what other evidence someone writing “no emails” in an email might have.
And if Schenck is lying and smearing the court in the process, wouldn’t Republicans want that exposed beyond doubt?
The maybes keep piling up — and that’s just about Alito’s leaked allegation, which, it’s important to remember, is only part of the larger story. That larger story, as exposed in the Times report selectively cited by the court, is Schenck’s religious campaign to influence Republican-appointed judges.
It’s fair to think that those justices didn’t need much help voting for the Republicans, but it’s worth wondering why Schenck and his “stealth missionaries,” as he called them, thought that their targets could be swayed when in doubt – and that kind of influence these missionaries attempted and accomplished. This larger story, of course, also requires an independent investigation, as Democrats seem to recognize.
It is in this context that the latest judicial crisis arose, when the judges, not bound by a code of ethics, face an unusually high deficit of trust with the public over which they rule. While the High Court has essentially operated on an ethical honor system (as opposed to lower federal judges who are subject to binding rules), the sniffing of judicial committees could provide some much-needed insight.
The public deserves independent questioning about the Alito case and the broader judicial influence campaign – even if the answer turns out to be “Nothing to see here.”
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